Ireland: Fighting for 21st century law to end Prejudice

Presentation to ‘International Perspectives on Sexual Orientation and Gender Identity Law’ Conference in Amsterdam, sponsored by The Williams Institute of the UCLA Law School
Dr Katherine Zappone
– July 2008

I am very happy to be able to speak to you this afternoon about the case I am taking in Ireland with my life partner – Ann Louise Gilligan – against the Irish state so that lesbian and gay people will be able to excerise their human right to marry the person they choose to love. Ann Louise – an Irish citizen – and I have shared a life-parternership for the past 26 years. We met in Boston College when we both began a PhD programme together (they only accepted two people onto this programme) and she came from Dublin and I came from New York city, though I am originally from Seattle. A year after we met, in 1982, we gathered a small group of friends to celebrate with us a life-partnership ceremony where we vowed a life of faithful love to each other. That day we found our voice to proclaim a promise of fidelity and life-long cherishing of the other into the future. We promised to share our dreams, our fears, our financial resources, our accomplishments and our failures. We committed ourselves to each other and we discovered unimaginable joy.

We moved to Ireland in 1983 – Ann Louise had a job teaching at a university – and have lived there ever since. In 1995 I had the privilige of becoming an Irish citizen and so now I hold dual citizenship. In this presentation, I would like to begin by outlining for you the context in Ireland, within which we made the decision to take this landmark case, to mention some of the reasons for our decision to do so, to outline our primary legal arguments, the High Court judgment and where things stand now in 2008 with regard to the interplay between the judicial, civic and legislative process in what we call ‘Fighting for 21st century law to end prejudice’ against lesbian and gay people in Ireland.

To begin, then, Ireland as you know is a constitutional democracy. In 1977, Senator David Norris initiated a case to decriminalise homosexuality. At the time, the statutes criminalised homosexual relationships between men. In 1980, David failed in the High Court, in 1983 he failed again in the Supreme Court by a 3:2 judgment which found that the laws did not contravene the Constitution, having regard to the Christian nature of the State, the immorality of the deliberate practice of homosexuality, the damage that such practices cause to the health of citizens and the potential harm to the institution of marriage. Senator Norris, with the assistance of Mary Robinson, his senior counsel at the time, then took the case to the European Court of Human Rights and won in 1988 with a judgment that Irish laws contravened Article 8 of the Convention on Human rights (the right to respect for private and family life). It took five years – largely through the campaigning of the Irish Gay and Lesbian Equality Network (a national ngo organisation) – to get the laws changed to decriminalise homosexual behaviour in 1993.

Coming to more a more recent context, Ireland, as many of you may know, prides itself on its robust equality legislation. In light of ongoing effective activity within the civic sphere (lobbying and campaigning by a number of Equality groups) and various government sponsored reports, Ireland enacted comprehensive equality legislation – protection in employment, equal pay, against harrassment and protection for the eal provision of goods, services, accommodation and education across nine grounds: gender, marital status, family status, sexual orientation, religious belief, age, race, disability and membership of the traveller community.

Within the context of the Good Friday/Belfast agreement – which established the Northern Ireland Assembly with devolved legislative powers; and the establishment of a power-sharing executive in the Assemby (between parties representing nationalists and unionists), National Human Rights Institutions were established in both Northern Ireland and the Republic. In the Republic we hold powers to promote and protect human rights as laid out within the Irish constitution and as laid out in international treaties that the Irish government is party to.

The explicit issue of partnership rights for same-sex couples came onto the formal agenda first with the publication of a report by Ireland’s statutory body, the Equality Authority. They gathered a group of civil servants and representatives of ngo’s to produce a report which argued that Irish laws should be amended to extend partnership rights to same-sex couples. This was followed by another report of the National Economic and Social Forum (established by statute) of civil servants, ngo’s and politicians, which came to similar conclusions and recommendations. However neither report went as far as to directly recommend any form of legal recognition of partnership between same-sex couples. While the NESF report did argue that extending rights to same-sex couples such as the right to nominate a partner, pension and next of kin rights, etc. would have a profound impact on achieving equality, they also said that: ‘It was the strong view of the Team that State recognition of these partnerships was not essential for the Government to make progress in relation to implementing greater equality for LGB people.’

This was the context and backdrop, then, against which Ann Louise and I began to contemplate the possiblity of taking a legal case. While we were both active within the civic sphere in relation to many human rights issues, especially those related to the poverty and economic inequalities in the lives of Irish people, we had no involvement in lesbian and gay rights work. The personal origins of our case, then, began late in 2001 – after 19 years of life-partnership – when an impending visit to Chile prompted a visit to our solicitor to update our wills. We jointly co-owned our family home, and we also jointly owned another property together. We thought it would be wise to ‘get our affairs in order’ just in case anything might happen to us during our time abroad. What we discovered that day was that – unlike married couples who jointly co-own property – we could not will ½ of our property to the other upon death of one of us – without major capital acquisition taxation implications. Effectively, the surviving partner would have to sell the property in order to pay the tax; what we thought was financial security was clearly not.

There’s a long personal story after that day –which we have recorded in memoirs that are about to be published – but for now, suffice to say that on that day we started on a long road through the valley of fear. One of the primary reasons that we eventually decided to take a case was because of the fact of public silence about partnership recognition between same-sex couples. If one were to review the Irish Times archives today, one would discover that the first time there was any mention of rights for Irish same-sex couples was in December of 2002 [a year later] when the editorial commented on the fact that the British government intended to extend to gay couples the property and inheritance rights afforded to married couples and that the Equality Authority’s group had endorsed similar changes in law. Over the next two years you could count on one hand the number of articles published in that same newspaper on this topic. From where we sat in early 2002, and with the knowledge we had about the very tenuous reationship between recommendations in policy documents and subsequent, substantive change, we discerned that little was going to happen unless there was a grass-roots mobilisation to bring pressure to bear on lawmakers or some kind of legal challenge within the courts. This is how things had been changed in other jurisdictions and so we assessed that the same would be true for Ireland. In April 2002 then, we took a decision to find a path to legalise our life-partnership and wrote to the Equality Authority to see if they could help us to discern what might be the best possible route. In the meantime I met a couple of times with members of GLEN who were working on a bill for ‘domestic partnership’ legislation that they hoped the independent senator, david Norris, would bring into our parliament. But the bill sounded more like a proposal for a business contract between two people who co-habit, something which did not at all reflect the nature of our life-partnership, nor did there appear to be any mobilsation behind the effort. Further, David’s independence as a Senator – as distinct from being a member of government – did not place him in a strong position to get such a bill enacted. Consequently, Ann Louise and I decided to form a legal team in 2002, in July of 2003 we decided to take a constitutional case, and then about a week later the miraculous possibility opened up that we could marry in British Columbia – at the time it was the only place in the world (apart from two other Canadian provinces) where same-sex couples could marry without being citizens or residents. So in September of 2003 we married each other in the presence of our American and Irish families in the great country of Canada with its Charter of Human Rights and Fundamental Freedoms.

So, why did we go to court? To summarise,

We went to court to seek justice for ourselves, and it is our right to do so within a democracy. The Irish Constitution says “all the powers of government, legislative, executive, and judicial, derive, under God, from the people (Art 6) and proclaims further that ‘Justice shall be administered in courts established b law by judges appointed (Art 34.1). At a personal level we wanted to ensure that our fundamental rights are prtoected in the same way as other citizens. The judicial structure is there precisely to provide citizens with this way of practicing democracy. Later on, in time, we heard from our senior counsel that the irish Constitution is not ‘permafrost in the period of 1937, when it was written, and that it is a ‘living document’ that requires re-interpretation as soicety changes; as ‘we the people of Eire’ (from prologue to the Irish Constitution) evolve over time. How is this foundational document to maintain its life, we ask, if ‘we the people’ do not engage with it?

We went to court because of a lack of civic and statutory activity (and it was 2003)

Because of our belief in the role of the courts in the protection of minorities

And because of an ethical vision that combines a commitment to equality (a substantive, not ‘incremental’ notion), freedom/liberty and love. What is the essence of married love? For us, it is not simply about a basket of rights, responsibilities and financial benefits that come in the wake of such a profound life decision. While these are extremely significant, they are not the full sum and substance of marriage. We married each other because we wanted to bind ourselves in law, as well as in love, to receive societal support for our promise-keeping and the generativeity that flows from it. We married each other because in that one act we were able to exercise our human freedom for the single most important choice of our lives. And some of you may know the psychic well-being that accrues when oppression and prejudice lift. That is why we are taking a court case, for ourselves, as well as for others. And that is why Ann Louise and I hope that Irish lawmakers will make law for the 21st century.

In going to court, the fact of our marriage influenced our legal strategy. Instead of looking for an Irish marriage license to probably be refused, we simply wrote to the Irish Revenue Commissioners to ask for a change in our marital status. When they refused (within a very polite letter that started off with ‘dear ladies’!) we sought and were granted a judicial review in November of 2004, with huge public coverage (nationally and internationally). and then is when the public debate ensued. We went to court in October of 2006, and in December we lost the case and lost our costs because as the judge said, in her view the case was not one ‘in the matter of public interest’.

I have listed our primary legal arguments on this next slide:

That homosexual identity is a normal way of being human;

That as such we have a human right to marry the person we choose to love

That this right is implicit within the Irish Constitution: Art 41; and that the Constitution does not define marriage as between a man and a woman;

That the Constitution also guarantees us equality before the law

Therefore the Constitution can be re-interpreted to recognise our Canadian marriage, otherwise our human right is not protected and we are being discriminiated against because of our sexual identity

The next slide lists the primary rationale of the High Court Judgment found against us:

Marriage refers to a marriage between people of the opposite sex;

This understanding has been re-inforced in recent judgments of the Irish courts;

Insufficient evidence of any ‘emerging consensus’ which would support displacement of the opposite sex rule (pointing to limited number of jurisdictions in which the ban had been lifted) – now 63% of Irish public in favour;

In particular, took the definition of the Civil Registration Act, 2004 as an indication of the ‘prevailing view’ as to the capacity to marry [domestic law defining marriage between man and woman, slipped into an Act after we received permission to take a judicial review]

Judge did not engage with the discrimination argument and

Added to this her concern for the ‘welfare of the children’ thereby justifying that the state take a cautious approach.

To conclude in relation to the judgment: it established that the Constitution does not require marriage to be opened to same sex couples and suggests that the appropriate avenue of reform lies with the legislature; and that our Case is under appeal to the Supreme court where the issue is the definition of marriage (as stated by our senior counsel) and as another Irish academic, Judy Walsh, points out – that it remains to be seen whether that Court will address the major outstanding question – whether the Constitution excludes the possibility of legislative reform.

In concluding my presentation, I wish to outline the interplay between the judicial, civic and legislative process in Ireland since we took the case. I will finish with reference to a recently published Scheme for Civil Partnership, put out by the Irish government this month, as well as some of the questions that we are now facing in Ireland in relation to these matters.

So, on this slide I have listed the enormous activity that has taken place in the last five years, since we received permission to take the case. I have already referred to the Civil registration act. Soon after we received permission an advocacy group was formed to specifically support our case and to build public support for the right to marriage for same-sex couples. In that same year, 2004, Senator Norris did put forward his Civil Partnership Bill and the discussion was deferred pending our case. Then the Minister for Justice established a Group to outline to the State the various options to legalise ‘domestic partnerships’ (2006) – during same period (after we had pleaded our case and before judgment) one of the opposition parties put forward a civil union bill. In each case of discussion of options for same sex couples, the government has argued, on the basis of advice from the Attorney General – that same-sex marriage is unconstitutional, though of course this has not been settled by the highest court yet. After our loss in the High Court, the KAL Advocacy group evolved into MarriagEquality.ie to campaign for equality – building public awareness and acceptance for civil marriage for lesbian and gay people, a group of younger citizens formed LGBT Noise, and other civic groups are participating in the civic debate – all naming that marriage is the ‘full equality’ option, though some suggesting that ‘incremental steps’ towards equality are better than none at all.

The Government, then, has just published its Scheme for a Civil Partnership Bill. It proposes 2 new models of recognition: a civil partnership registration scheme for same sex couples and a presumptive scheme for cohabitants, both same-sex and opposite-sex; it proposes amendments to several acts to extend some partnership rights and duties to same-sex couples; eg succession, pension, maintenance, ‘shared home’ protection and it provides for steps to take for dissolution; it further provides for a redress scheme for ‘qualified cohabitants’ (those who have lived together for three years) to claim from the estate of the deceased partner or for the economically dependent cohabitant to claim maintenance, accommodation and pension rights when the relationship breaks down.

The bill is, however, silent on taxation and social welfare implications (to be dealt with in other legislation), silent in relation to health care (next-of-kin issues), creates a new designation for ‘family home’ and calls it ‘shared home’ for same-sex couples; there is a huge gap in relation to same-sex couples with children. There will be no joint adoption (though a single lesbian or gay person may apply to adopt), no possibility of guardianship by non-biological parent; and finally there is a lower threshold for dissolution than for marriage – couples are required to live apart 4 years if they are married in order to divorce, 2 years if they have formed a civil partnership.

I leave you with three of the key questions we are debating right now in Ireland, no doubt similar issues have been or continue to be debated in most other jurisdictions throughout the world:

Should civic groups lobby to improve a bill that establishes a separate institution for same-sex couples with significantly less partnership rights than the institution of marriage, in 2008?

What will be the impact of the differential treatment of a minority group, should this Irish bill become enacted?

Will the establishment of civil partnership for same-sex couples make it more or less likely for a Constitutional interpretation that protects the human right to marry of people of a minority sexual identity?

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